Airbnb, Homeaway, And The Importance Of Holding The Line On Section 230
from the back-to-basics dept
SESTA has done enormous damage to the critical protection Section 230 affords platforms – and by extension all the Internet speech and online services they facilitate. But it's not the only threat: courts can also often mess things up for platforms by failing to recognize situations where Section 230 should apply and instead allowing platforms to be held liable for how their users have used their services.
Which leads to the situation Airbnb, Homeaway, and other such platforms find themselves in. Jurisdictions unhappy with some of the effects short-term rentals have had on their communities have taken to passing regulations designed to curb the practice. Whether or not it is good policy to do so is beyond the scope of this post. If some local jurisdictions want to impose liability on their residents for renting out their homes – and not all of them do – it's between them and their voters.
The problem arises when the regulations they come up with don't just target people renting their homes, but also target the online platforms that facilitate these transactions. These ordinances effectively create liability for platforms arising from content generated by others, which is a regulatory practice that Section 230 prohibits.
So Airbnb and Homeaway have started pushing back on these ordinances, first in San Francisco and now in Santa Monica. Unfortunately both efforts to enjoin them have resulted in federal district court decisions saying that Section 230 does not shield them from their reach, meaning that these local jurisdictions are fully able to hold these platforms liable if people use them to rent homes they aren't supposed to. The decision about the Santa Monica ordinance is now before the Ninth Circuit, and last week I wrote a brief for the Copia Institute explaining why it should find that Section 230 indeed prevents these ordinances from imposing liability on these platforms. It was important to say so, not just to support Airbnb and Homeaway, but because if Section 230 can't apply to them, then it won't be able to apply to a lot of other platforms that depend on it.
The crux of the problem appears to stem from courts not seeing how what is at stake in these cases is actually speech, perhaps because the kind of speech sites like Airbnb and Homeaway intermediate is so specific. But even if the only expression these platforms intermediates is, "I have a home to rent," it's still speech, speech created by someone other than the platform, and Section 230 therefore still applies. There is no language in Section 230 that would require a platform to intermediate lots of different kinds of expression in order to be entitled to the statute's protection. Many platforms are extremely specialized in the type of expression they intermediate, often because that's what makes them useful and effective as services, and all are equally entitled to the statute's protection.
The fact that the specific speech being intermediated is transactional in nature seems to be what's confusing the courts, especially given that these sites often make money by taking a cut of the transactions that are successful. The court addressing the Santa Monica ordinance recognized that a site like Craigslist, which also hosts "I have a home to rent" speech (among other types of speech), would not be affected by the ordinance because it doesn't make money when "I have a home to rent" speech results in a rental. But there is no reason that these platforms should be treated any differently. Section 230 applies regardless of how a platform makes its money. There's no requirement in the statutory language that a platform profit only in certain ways – in fact, if anything the statute encourages platforms to be innovative so that the public can continue to benefit from their services. And for good reason: think about platforms like eBay, which also profit when "I have a thing to sell" speech finds an audience who wants to buy it. If Section 230 protection could be withheld from all platforms that make money from consummated transactions it would be more than just the Airbnb and Homeaway who would be in trouble.
The only relevant question to ask in considering whether Section 230 applies is who created the content that is potentially wrongful. In the case of Airbnb and Homeaway it is their users. After all, there's nothing inherently wrongful about saying, "I have a home to rent." Whether it is wrongful depends entirely on whether the user is allowed to rent it per local law. Liability should therefore remain entirely with the user who is the one who imbued it with its wrongness. Particularly because it is often not practical, or even possible, for platforms to police all the content passing through them. Even if they had the resources to examine the volume of user-generated content that passes through their systems they may not have the ability to know which, if any of it, was wrongful. Thus if platforms could be forced by any particular jurisdiction to try to police it anyway, in order to stave off potentially expensive liability, it would invariably chill their ability to provide their services – including in other jurisdictions.
Which is also why Section 230 includes a pre-emption provision, so that no particular jurisdiction can get to decide for any other one what Internet speech and services people can benefit from in these other places. Without that provision the jurisdiction with the most restrictive laws would otherwise get to impose its policy choices on any other jurisdiction the service now shaped by these policies could reach, which, in the case of an Internet service, is every single one of the thousands and thousands of state and local jurisdictions nationwide.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cda 230, home rentals, intermediary liability, santa monica, section 230, speech
Companies: airbnb, homeaway
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in thread ]
Fining Suburbanites is unpopular politically
Gotta love the world of perverse incentives...
[ link to this | view in thread ]
District Court Proceedings
C.D. Cal. Dockets:
Airbnb, Inc. v. City of Santa Monica (2:16-cv-06645)
[ link to this | view in thread ]
Ninth Circuit Proceedings
Homeaway.com and Airbnb v City of Santa Monica
[ link to this | view in thread ]
Order Appealed [was Re: District Court Proceedings]
[ link to this | view in thread ]
sailing upstream
For instance, let's consider the so-called "crack houses" -- old vacant houses, often in derelict neighborhoods, where people break in, trespass, and live without permission of the owner, which is often some far-away speculator company which picks up properties that no one else wants at foreclosure auctions. When the squatters living and/or selling drugs there start to be a noticeable problem, legal threats and penalties tend to get slapped on the property owners, rather than just on the actual people who are the problem.
Since Airbnb is a big company with deep pockets, they're only naturally going to be targeted for the behavior of others.
[ link to this | view in thread ]
Re: Order Appealed [was Re: District Court Proceedings]
From Judge Otis Wright's Mar 9, 2018 order—
• Airbnb v San Francisco (N.D.Cal. Nov. 8, 2016)
[ link to this | view in thread ]
Section 230 won’t save Airbnb
[ link to this | view in thread ]
Santa Monica Municipal Code
Appellant's opening brief in the 9th Circuit, in its addendum, on p.83ff., provides a copy of Santa Monica Ordinance No. 2535 (CCS), which amends Santa Monica Municipal Code Chapter 6.20.
Purely for convenience, here's a direct link to a different copy of Santa Monica's Municipal Code:
• Chapter 6.20 HOME-SHARING AND VACATION RENTALS.
(Note that I've made only minimal effort to compare these two versions.)
[ link to this | view in thread ]
[ link to this | view in thread ]
What a sad pathetic world we all share today :(
[ link to this | view in thread ]
Consensus..
Can you see what Local hotel/motel chains think about this?? They dont want HOMES available for short term rent..
They want you to pay small fortunes to USE THEIR ROOMS..
Im waiting for them to pass a bill on Health and safety for ANy temp domicile..
[ link to this | view in thread ]
They are more than a disinterested listing agent
While 230 does allow some limited editorial control, these companies are more than just nearly-passive conduits that the law was designed to protect.
[ link to this | view in thread ]
Re: They are more than a disinterested listing agent
By its plain terms, 47 USC § 230 protects more than “just nearly-passive conduits”. The language is—
Emphasis is added here on the word ”user” because no reasonable person would characterize a “user” as a “nearly-passive conduit”.
Indeed, S. Rept. 104-230 (along with the same in H. Rept. 104-458) states clearly in its discussion of the Cox-Wyden “online family empowerment” amendment (§ 509 of the Telecommunications Act of 1996)—
It is indisputable that one of the “specific purposes” of § 230 was to overrule Stratton-Oakmont v Prodigy (N.Y. Sup. Ct. Nassau Co. 1995). That case explicitly employed the term “passive conduit”. It then went on to find that Prodigy was more than a “passive conduit” and therefore was open to liabilty.
At 142 Cong. Rec. 8469-70, then-Representative Cox explained his understanding of the court's decision and then said—
Recently, in connection with the instant case, Chris Cox's amicus brief, on p.23 (p.30 in PDF), summed this legislative history up as—
The law was designed to protect more than —your words— “just nearly-passive conduits”.
[ link to this | view in thread ]
Re: Re: They are more than a disinterested listing agent
Anchor text should be 141 Cong. Rec. H 8469-70. The hyperlink does go to the right url.
[ link to this | view in thread ]